This article is written by Pragya, a student of New Law College, BVDU, Pune, explains all about the anticipatory bail in India and all its legal aspects.
Law is of two kinds: – Substantive law and procedural law. Substantive Llaw is the written or statutory law and Procedural Law is the law which deals with enforcement of substantive law. Before going into the insights of the topic, the matter which comes into consideration is what is an offence? An offence is defined as an act or omission made punishable by any law for the time being in force. Offence within its ambit includes the bailable offences. The law of bails constitutes an important branch of procedural law. The term “bail” has not been defined in the code. But broadly it means temporary release of an accused person on some kind of security for his appearance. An undertaking is being taken to ensure presence during the trial and to submit to the jurisdiction and judgment of the Court. In Sunil Fulchand v. Union of India, the Supreme Court stated: – “The effect of granting bail is to release the accused from internment though the Court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him.”  Bail has a deep rooted history in English and American Law. Bail is of two kinds:-
- Regular bail and
- Anticipatory bail.
The Article throws light upon the anticipatory bail and its legal aspects.
SECTION 438 OF CODE OF CRIMINAL PROCEDURE, 1973
Section 438 of the Code of Criminal Procedure, 1973 deals with the provisions regarding the Anticipatory Bail. The words “anticipatory bail” have not been defined in the code. The expression “anticipatory bail” is a misnomer and the order becomes operative only on arrest.
Section 438 of the Code reads as under:-
“Direction for grant of bail to person apprehending arrest”
Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely-
- The nature and gravity of the accusation;
- The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
- The possibility of the applicant to flee from justice; and.
- Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, Either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. […]
Right to life and personal liberty is an important right granted to all the citizens by the Constitution. It is one of the precious rights. The legislative history of the provision reveals that the Joint Select Committee of Parliament had initiated a thought that bail should be made available in anticipation of arrest so that liberty of an individual may not be unnecessarily jeopardized. It then asked the Law Commission of India to take into consideration this matter and the section have been added as a result of its report. No person should be confined in any way until and unless held guilty as it is in conflict with the very nature of Right to life and personal liberty.
WHY ONE REQUIRES ANTICIPATORY BAIL?
Section 438 of the Code clearly stipulates in the beginning statement itself that when a person has a reasonable apprehension to believe that they can be arrested on an accusation for commitment of a non-bailable offence they can move to the High Court or the Court of Sessions for grant of an “anticipatory bail”. For instance, Mr. A got married to Ms. W. After their marriage the things were not smooth between them. Ms. W then filed a case against him under section 489(A) of Code of Criminal Procedure, 1973. He had a reasonable apprehension that he could be arrested so he moved to the court for grant of an “anticipatory bail”. According to Blackstone’s formulation in criminal law:-
“It is better that ten guilty persons escape than that one innocent suffer”.
The power to grant anticipatory bail must be exercised by the Court in very exceptional cases. The court must be satisfied that there is a reasonable cause and a reasonable ground for grant of anticipatory bail. In Gurbaksh Singh Sibbia v. State of Punjab the Supreme Court held that: – “Before power under sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere “fear” is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds, on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section.”
The section protects the Right of Life and Personal Liberty of such persons by providing them with a remedy against frivolous detention. In a country where rifts and rivalries are common, its citizens should have a remedy which prevents disgracing their Right to Life and Personal Liberty.
PROCEDURE FOR GETTING AN ANTICIPATORY BAIL
For getting the anticipatory bail the person may approach the High Court or the Sessions Court. As soon as the person apprehends that they may be arrested under section 406, 434 or under section 498A they should consult a good lawyer for grant of an anticipatory bail. The Lawyer will then file a “wakalatnama” in the appropriate district court with the required anticipatory bail petition. Then there will be a hearing scheduled by the court for the petition. The person must try to accompany the Lawyer to the court so that the court can hear their version of the case. Although there are no provision in Section 438 for issuing notice to the Public Prosecutor (lawyer which appears on behalf of the government) and hearing by the court but as held by the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, “a notice should be issued to the Public Prosecutor or the Government advocate before passing final order granting anticipatory bail. Therefore, if there are circumstances justifying ex parte interim order, the court may pass such order, issuing notice to the Public Prosecutor by making it returnable and may pass final order after hearing both the sides.” After the 2005 amendment it is compulsory for the court to hear the Public Prosecutor. Many a times it happens that the District and Sessions Court denies the Anticipatory Bail, then the person must and shall appeal in the High Court and the High Court generally grants the Anticipatory Bail. After the bail is granted there are few formalities that have to be followed before the person is finally out on Bail. The Court has a power to put some conditions and restrictions. These are:-
- A condition that the person shall make himself available for interrogation by a police officer as and when required;
- A condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
- A condition that the person shall not leave India without the previous permission of the Court;
- Such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section.
DISTINCTION BETWEEN ORDINARY BAIL AND ANTICIPATORY BAIL
In Gurbaksh Singh Sibbia v. State of Punjab the Supreme Court held that:-
“The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favor it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.”
CANCELLATION OF ANTICIPATORY BAIL
Though there is no specific provision in Section 439 regarding cancellation of bail, it is implicit that the Court which grants anticipatory bail is entitled upon appropriate consideration to cancel or recall that order. Anticipatory Bail is a special privilege granted to the person apprehending arrest and it should not be abused in any manner. Even in absence of an express provision of cancellation of bail in the Code, the power of cancellation springs from the overriding inherent powers of the High Court and can be invoked in exceptional cases only when the High Court is satisfied that the ends of justice will be defeated unless the accused is committed to custody.
Anticipatory Bail was introduced in the Code to prevent violation of personal liberty of a person. No person can be deprived of his personal liberty and can be detained unnecessarily. But utmost care should be exercised by the Courts while granting it so as to prevent the abuse of this special privilege. The Hon’ble Supreme Court of India has emphasised on this point time and again through a catena of judgements. Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusation, likely or unlikely.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
 Sec 2(n) of THE CODE OF CRIMINAL PROCEDURE, 1973
 AIR 2000 SC 1023
 AIR 1980 SC 1632
 AIR 1980 SC 1632
 State of Maharashtra v. Vishwas AIR 1978
 Ratilal Bhanji v. Asstt. Collector of Customs AIR 1967 SC 1639